Tag Archives: Supreme Court

The Rubber Has Hit The Road

Remember that old saying about “when the rubber hits the road”? Its import was that, when the rubber hit the road, it was time to act, to decide…Well, given overwhelming evidence of the GOP’s attempted coup, the neutering of Congress by use of the filibuster, and the morphing of the Supreme Court into a religious tribunal, it’s fair to conclude that the rubber has indeed hit pavement, and a failure to move quickly to recapture the institutions of American life will turn this country into a place most of us won’t want to inhabit.

In the wake of the Court’s ruling in Dobbs, The Guardian was especially blunt. In an article headlined “How the Christian right took over the judiciary and changed America,” it reported–quite accurately-

The supreme court decision in Dobbs v Jackson Women’s Health Organization, which reverses the constitutional abortion rights that American women have enjoyed over the past 50 years, has come as a surprise to many voters. A majority, after all, support reproductive rights and regard their abolition as regressive and barbaric.

Understood in the context of the movement that created the supreme court in its current incarnation, however, there is nothing surprising about it. In fact, it marks the beginning rather than the endpoint of the agenda this movement has in mind.

 At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large.

Let me just repeat that last paragraph:

At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large.

How did this happen? How did White Christian Nationalists effectively take over a major political party and the courts? As the Guardian article notes, answering that question requires looking back at the history of the Christian Nationalist movement, and how it “united conservatives across denominational barriers by, in effect, inventing a new form of intensely political religion.”

Christian nationalists often claim their movement got its start as a grassroots reaction to Roe v Wade in 1973. But the movement actually gelled several years later with a crucial assist from a group calling itself the “New Right”.

Among the many things the New Right opposed were feminism and the civil rights movement. One thing that they were not particularly angry about, at least initially, was the matter of abortion rights. A primary concern was that the Supreme Court might end tax exemptions for segregated Christian schools, but they knew “Stop the tax on segregation!” was unlikely to be an effective rallying cry for their new movement. They needed an issue that could be used to unify the various, disparate elements of the New Right, an issue that could draw in the rank and file.

In many respects abortion was an unlikely choice, because when the Roe v Wade decision was issued, most Protestant Republicans supported it. The Southern Baptist Convention passed resolutions in 1971 and 1974 expressing support for the liberalization of abortion law, and an editorial in their wire service hailed the passage of Roe v Wade, declaring that “religious liberty, human equality and justice are advanced by the Supreme Court abortion decision.”

On the other hand, abortion brought conservative Catholics into the movement with conservative Protestants and evangelicals, and allowed the New Right to blame abortion rights for all manner of perceived social ills of the age – especially women’s liberation .”The issue became a focal point for the anxieties about social change welling up from the base.”

In recent decades, the religious right has invested many hundreds of millions of dollars developing a complex and coordinated infrastructure, whose features include rightwing policy groups, networking organizations, data initiatives and media. A critical component of this infrastructure is its sophisticated legal sphere.

 Movement leaders understood very well that if you can capture the courts, you can change society.

And so here we are. The Courts have been captured; the Congress (thanks to gerrymandering and filibuster Joe Manchin) has been neutered. Over 100 state candidates running for the right to count our votes are “Big Lie” proponents.

The rubber has hit the road.  Americans must turn out in massive numbers this November to  dislodge the theocrats and begin the process of reclaiming  America.

All available research shows a majority of Americans strongly opposed to the Christian Nationalists who have assumed control of our no-longer-so-democratic institutions. All voting history shows that a disastrous number of those Americans won’t bother to vote.

If that doesn’t change in November, the America we know is over.

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What Can We Do About The Supreme Court?

It’s no longer possible to avoid recognizing the extreme radicalization of the United States Supreme Court.  As an email from the Center for Inquiry accurately characterized the latest ruling, it was “not the act of a secular court but of a religious tribunal.” 

Since the ascension of Mitch McConnell’s hand-picked culture warriors, we have seen a steady stream of decisions laying waste to the legal underpinnings of American liberties. I have written before about the terrifying implications of the abortion ruling,  and why it threatens a much broader array of personal liberties than reproductive autonomy. (In his concurring opinion in Dobbs, Thomas made that threat quite explicit.) The Court has continued its assault on genuine religious liberty, which requires separation of church and state. And its wholesale abandonment of previous precedents on gun legislation–including even the pro-Second-Amendment decision in Heller written by “originalist” Antonin Scalia–is further evidence of a Court majority intent upon rewriting and re-imagining two hundred years of constitutional jurisprudence.

A reader asked me to comment on a report from the Brennan Center proposing changes to the way jurists are elevated to the high court. It is worth emphasizing that the Center issued this paper in 2019, and that it is only one of numerous proposals published during decades of scholarship addressing increasing concerns about the Court’s operations– the analysis was not written as a response to the recent blitz of appalling decisions.

Perhaps the thorniest issue raised by the current operation of the Court involves what the Brennan paper calls “democratic accountability.”

Judicial accountability is different from legislative or executive accountability; the whole purpose of lifetime appointments to the federal bench was to insulate the judiciary from the political passions of the moment–to avoid the sort of “accountability” to political pressure that the other branches  quite properly experience. The Executive and Legislative branches were created to be (more or less) directly answerable to “we the people,” but judges were expected to make thoughtful and considered decisions based on the law and facts as they saw them. (Electing judges, as some states do, is a repudiation of that foundational intent.)

On the other hand, the courts certainly weren’t meant to be untouchable quasi-legislative bodies. (Remember when Republicans screamed about “Judicial Activism” and “Imperial Courts”?) There are several ways to insure appropriate democratic accountability without abandoning the original purpose of lifetime appointments.

As the Brennan report noted,

Two funda­mental flaws in the Consti­tu­tion’s appoint­ment system must be fixed. First, there is no regu­lar­ized system for Supreme Court appoint­ments. Because pres­id­ents can appoint new justices only when a sitting justice resigns or dies, justices are appoin­ted unevenly, so that some pres­id­ents have many appoint­ments, while others have few or even none. In addi­tion, because justices now serve longer on aver­age than their prede­cessors, there are signi­fic­antly fewer appoint­ment oppor­tun­it­ies. These devel­op­ments fray the only formal link between the court and the people — nomin­a­tion by an elec­ted pres­id­ent and confirm­a­tion (or not) by elec­ted senat­ors. In the early days of the repub­lic, when the court was viewed as weak, such defects caused little harm. But today, with the court hold­ing immense power, the lottery appoint­ment system under­mines the court’s consti­tu­tional legit­im­acy and erodes the court’s connec­tion to our demo­cracy.

Second, life tenure permits justices them­selves to stra­tegic­ally time their retire­ments so that an ideo­lo­gic­ally like-minded pres­id­ent can appoint their successor. Recently, this has become the norm. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders. In addi­tion, some justices have remained on the court after a severe decline in their mental or phys­ical capa­cit­ies, in hopes of last­ing until a pres­id­ent who shares their legal and policy pref­er­ences takes office. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders when they wrote the Consti­tu­tion.

In the current system, some pres­id­ents appoint an outsized number of justices, some justices outlive the offi­cials who appointed them by many years, and  justices can time their retirements to ensure the ideo­logy of their successors. Worse still, a majority of Justices on the current Court were appointed by Presidents who had lost the popular vote.

As a result, today’s Court lacks democratic legitimacy. 

Correcting the two flaws described in the linked report would require a constitutional amendment prescribing regular appointments coupled term limits. (Constitutional scholars argue that 18-year terms should be adequate to insulate judges from political pressure.)

Given the daunting barriers to passage of constitutional amendments–not to mention the lengthy timeframe of even successful efforts– several legal scholars advocate enlarging the Court. Changing the number of Justices can be done by statute, and in fact, has been done before. Suggestions for enlarging the Court long preceded the current Court, and were prompted primarily by workload concerns–more recent Courts hand down far fewer decisions than previous ones did.

 The author of the Brennan report dismisses that remedy as too partisan, but–as I noted previously–his paper was written before Amy Coney Barrett joined the Court, bringing to five the number of radical religious culture warriors (with the frequent concurrence of the Chief Justice) intent upon dismantling years of constitutional jurisprudence. And five is enough to get the job done.

If the addition of justices is seen as partisan, so be it. The current Court is a thoroughly partisan religious tribunal–and a clear and present danger to the Republic. Ignoring that fact is not an option.

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Free Speech For Those Who Can Afford It

When John Roberts was elevated to the Supreme Court, my concerns weren’t focused on his likely conservative/ideological rigidity. (That was —and remains–my concern with subsequent Justices.) My “reading” of Justice Roberts was that he would instinctively side with power and authority–that he was likely to be pro-government and pro-business elite in situations calling for more searching inquiry into the equities involved.

I am not happy to report that my concerns were well-founded.

Roberts is solicitous when it comes to the rights of American elites. The defense of corporate “free speech” rights in Citizens United required an airy disregard of the foreseeable consequences of that decision for the electoral system. The opinion simply ignored the issue of disproportion, disingenuously equating the free speech rights of everyday citizens with the free speech rights of those who have massive resources at their disposal.

The problem began when the Court equated money with speech, and in Citizens United and several subsequent cases, it has steadily chipped away at McCain-Feingold restrictions meant to level the political playing field.

A few days ago, Len Farber reminded us of the quote from Anatole France that is perfectly applicable here: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The most recent example of this sanctimonious and dishonest approach to the constitutional right of free speech came in a case brought by the odious Ted Cruz.

The case challenged a law limiting the amount of campaign funds that can be used to repay personal campaign loans to $250,000.  In a decision further weakening campaign finance regulations, the court held that a federal cap on candidates’ use of political contributions after an election to recoup personal loans made to their campaign was unconstitutional.

Roberts wrote the majority opinion, protecting the “free speech” rights of candidates with the resources to lend their campaigns enormous sums. Justice Elena Kagan cut through Roberts’ “free speech” pose to zero in on the real issue.

In her dissenting opinion, Kagan criticized the majority for ruling against a law that she said was meant to combat “a special danger of corruption” aimed at “political contributions that will line a candidate’s own pockets.”

In striking down the law today,” she wrote, “the Court greenlights all the sordid bargains Congress thought right to stop. . . . In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute.”

Indeed, she explained, “Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption — the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

Even if we give Roberts the benefit of the doubt–if we assume that, from his lofty perch, he really doesn’t understand how the political “real world” works–it’s difficult to understand this decision. (Former Congressman Lee Hamilton used to say that the Supreme Court would benefit greatly from fewer Ivy League graduates and more Justices who had run for county sheriff–people who understood the gritty realities of political life.)

Cruz argued that “by substantially increasing the risk that any candidate loan will never be fully repaid,” the law forces a candidate to think twice before making those loans in the first place. The underlying assumption of his argument, of course, is that “serious”candidates for office are wealthy enough to self-finance their campaigns. This decision allows those wealthy candidates to do so without risking an actual loss of some portion of their funds, because they can now recoup the entire amount from post-election campaign fundraising.

As the Deputy Solicitor argued, the law “targets a practice that has significant corruptive potential.”

“A post-election contributor generally knows which candidate has won the election, and post-election contributions do not further the usual purposes of donating to electoral campaigns,” he said.

Campaign finance watchdogs supported the cap, arguing it is necessary to block undue influence by special interests, particularly because the fundraising would occur once the candidate has become a sitting member of Congress.

As one election law expert commented, “the Court has shown itself not to care very much about the danger of corruption, seeing protecting the First Amendment rights of big donors as more important.”

As an Atlantic  newsletter concluded: campaign-finance regulation in the U.S. has all but vanished.

This decision is more evidence–as if we needed it– of a Court that has lost its way.

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Braun: Another Indiana Embarrassment

As if the election of a truly abysmal legislature, courtesy of gerrymandering , wasn’t bad enough, Indiana’s voters keep giving the state hugely embarrassing statewide officials. I have posted several times about Todd Rokita, Indiana’s widely-despised egomaniac Attorney General; currently, it’s intellectually and morally-challenged Senator Mike Braun who is reflecting negatively on Hoosiers.

The Washington Post was one of several media outlets reporting on Braun’s defense of “state’s rights” during the confirmation hearings for Judge Jackson.

Sen. Mike Braun (R-Ind.) said Tuesday that he would be open to the Supreme Court overturning its 1967 ruling that legalized interracial marriage nationwide to allow states to independently decide the issue.
 
Braun — who made the comments during a conference call in which he discussed the nomination of Judge Ketanji Brown Jackson to the Supreme Court — also said he’d welcome the rescinding of several key decisions made by the court in the past 70 years to pass the power to the states.

 Heather Cox Richardson had a historically-grounded response to Braun’s assertion that the country would be “better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.”  As Richardson reminds us, the whole point of the 14th Amendment was to “homogenize” the fundamental rights of American citizens. 

After World War II, the Supreme Court used the Fourteenth Amendment to protect civil rights in the states, imposing the government’s interest in protecting equality to overrule discriminatory legislation by the states. 

Now, Republicans want to return power to the states, where those who are allowed to vote can impose discriminatory laws on minorities. 

Richardson points out that it’s impossible to limit an evisceration of the Fourteenth Amendment to a single issue. If states are empowered to award or deny rights as they wish –if they are free of federal restraints on their ability to strip reproductive rights from women, for example–“the entire body of decisions in which the federal government protects civil rights, beginning with the 1954 Brown v. Board of Education decision ending segregation in the public schools, is illegitimate.”

Voters need to realize that the GOP’s assault on fundamental rights goes well beyond efforts to overturn Roe. Tennessee Senator Marsha Blackburn has challenged  Griswold v. Connecticut, the decision that legalized contraception, and Texas Senator John Cornyn has attacked Obergefell, the decision recognizing same-sex marriage.

Braun and the other Neanderthals in the GOP would undoubtedly cheer such results. Most Americans, not so much. Richardson points out that they are “quite literally” making the same “states’ rights” argument used to justify enslaving people before the Civil War.”

More recently, it is the argument that made birth control illegal in many states, a restriction that endangered women’s lives and hampered their ability to participate in the workforce as unplanned pregnancies enabled employers to discriminate against them. It is the argument that prohibits abortion and gay marriage; in many states, laws with those restrictions are still on the books and will take effect just as soon as the Supreme Court decisions of Roe v. Wade and Obergefell v. Hodges are overturned.

Eviscerating the Fourteenth Amendment provision that prohibits states from withholding the “privileges and immunities” of U.S. citizenship from their citizens would invalidate the existing jurisprudence of Equal Protection, a jurisprudence that requires all states to respect the fundamental rights protected by the Bill of Rights–to “homogenize” them.

Richardson points out that Braun’s desired reversal of Loving v. Virginia would criminalize the marriages of both Judge Jackson and Justice Thomas in certain states.

Braun’s willingness to abandon the right of Americans to marry across racial lines was pointed, since Judge Ketanji Brown Jackson, whose confirmation hearing for her elevation to the Supreme Court is currently underway in the Senate, is Black and her husband is non-Black. The world Braun described would permit states to declare their 26-year marriage illegal, as it would have been in many states before the 1967 Loving v. Virginia decision declared that states could not prohibit interracial marriages. This would also be a problem for sitting justice Clarence Thomas and his wife, Ginni.

Braun is today’s version of  a mainstream Republican, and Richardson revisits a frequently-quoted paragraph written a decade ago by respected scholars Thomas Mann and Norm Ornstein, who concluded

“The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition. When one party moves this far from the mainstream,” they wrote, “it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”

So we’ve seen–and it has only gotten worse.

These days, as the Jackson hearings are painfully illustrating, Republicans have made both civil discourse and  basic, substantive governance virtually impossible.

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State’s Rights

The importance of appointments to the Supreme Court isn’t limited to the issue of abortion, or to questions whether “religious liberty” protects the right to discriminate against gay people or refuse to be vaccinated, even when that “liberty” demonstrably harms others.

Thanks to Mitch McConnell, the Court now has at least four current Justices who appear ready to erase over a hundred years of precedent in order to protect the GOP’s electoral advantages. If the Court ultimately decides to ignore most of the jurisprudence that followed and applied the 14th Amendment, returning the United States to a decidedly ununited  status under the rubric of “states rights,” it won’t take long before we inhabit a country that most Americans won’t recognize.

And that country will not be a democracy, if by “democracy” we mean majority rule limited only by the Bill of Rights.

The Court recently denied efforts by Republicans from Pennsylvania and North Carolina to overturn lower court decisions that found redistricting maps favoring Democrats were fairly drawn. The immediate result was positive (or negative, depending upon your political preferences) and most people didn’t read beyond the headline. If they had, they would have seen a chilling  dissent filed by four right-wing justices who supported the Republicans’ argument that state legislatures have ultimate power to determine their own voting procedures, including the selection of presidential electors.

This–as several commentators have noted–is the old state’s rights argument.

If a state’s legislature can determine who gets to vote, or how votes are to be counted and by whom, states like Indiana that have already been gerrymandered to ensure Republican super-majorities can pass laws that further disenfranchise Hoosiers who disagree with their agenda, no matter how extensive that disagreement may be. (We saw the outlines of that agenda in the recently concluded session; Republicans and police officers opposed the bill that eliminated the requirement of a permit to carry a gun.It passed anyway. And  Republicans in the legislature have already asked the governor to call a special session to outlaw abortion if–or when–this Supreme Court strikes down Roe v. Wade.)

As historian Heather Cox Richardson recently reminded readers, in 1868, it was this very concept of “states rights” that Congress overrode with the Fourteenth Amendment–an amendment that the states subsequently ratified.

As others have noted, with appropriate alarm, at least four of the current Supreme Court justices have confirmed  that they are ready to support this independent state legislature theory. That support requires what one pundit has accurately called  “a radical reading of the Constitution that imbues state legislatures with total control over election and voting rules, and redistricting.” 

The Supreme Court has already denied the federal courts authority to overrule partisan gerrymandering. If it endorses the independent state legislature theory, that would bar state courts from doing so as well.  As the linked article summarized the situation,

f enough justices embrace this theory, it’ll give state legislatures — which skew Republican thanks to down-ballot investments and aggressive gerrymandering — free rein over redistricting, voting rules and, most disturbingly, elections. 

“It is effectively an avenue to free state legislatures from the supervision of state courts, which play a critical check and balance on the power of those legislatures,” Daley added. “All you have to do is look at state legislatures around the country to get a really good sense of what the future would look like if these legislatures are free to enact election law with impunity.”

An embrace of that theory by the Supreme Court would further exacerbate the divisions between Red states and Blue states; as the old saying goes, what’s sauce for the goose is also sauce for the gander. Many years ago, political scientist Theodore Lowi traced the resistance of local political pooh-bas to the 14th Amendment’s application of the Bill of Rights to state and local units of government. The result of that application, of course, was to create an American identity–to assure citizens that they would have the same basic rights if they moved from State A to State B.

Make no mistake: empowering state legislatures under this radical theory wouldn’t simply entrench political parties and eviscerate the 14th Amendment. It would be a retreat in the direction of the Articles of Confederation.

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